From the Archives: Legal scholar Richard Epstein discusses new book ‘Design for Liberty’

Legal scholar Richard Epstein discusses new book ‘Design for Liberty’
February 23, 2012 4:01 PM MST

Already well-known for such works as Takings: Private Property and the Power of Eminent Domain, How Progressives Rewrote the Constitution, and a widely used legal textbook on torts, New York University law professor Richard A. Epstein has just published Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press).

At a recent Cato Institute event, Professor Epstein spoke to the Charlottesville Libertarian Examiner about his new book and his next project, a book about classical liberalism and constitutional law.

What is ‘Design for Liberty’?
Design for Liberty, he said, differs from his previous books in that “it’s a little bit more philosophical. It spends much more time talking directly about public administration, which I have not talked about much in previous books.”

Moreover, Epstein added, it reflects his “newfound interest in public administrative law, which is usually missing from the earlier works, and of course, it has material which I could never have covered earlier because things like the Dodd-Frank [banking] statute and the current health-care [law] are creatures of the last year or so and therefore I never spoke about them before.”

Digging further beneath the surface, Epstein pointed out that his new book contains “a fairly detailed explanation of first and second order rules, a sort of technical subject,” which involves the question of “when is it that you have to have to resort to reasonableness rules?”

That happens, he said, when “it turns out that hard-line rules don’t work and what you have to do in order to make the rule of law work is to understand that the mere fact that there’s a reasonableness in some legal system doesn’t disqualify from the rule of the law.”

“On the other hand,” he argued, “you can’t let reasonableness determinations overwhelm the whole system, so I try to develop protocols to how it is that you separate those things.”

Future project on classical liberalism
Also a columnist for the Hoover Institution's online journal, Defining Ideas, where he writes regularly as "The Libertarian," Epstein is working on his next project, which will be what he describes as “a very long book” with the working title “The Classical Liberal Constitution.”

That book, he said, is “about 90 percent done.”

In it, Epstein “takes the fundamental insights that I’ve developed over the years and basically gives a comprehensive analysis of every major constitutional area with a hell of a lot of compression, but it starts with basic theories of constitutional interpretation. It talks about the conflict between the progressive and the classical liberal visions. Those,” he said, “are things I’ve talked about before.”

Epstein’s forthcoming book “goes through systematically the judicial, the executive, and legislative branches, and then does all the various threads of individual rights, each getting a chapter.”

Unlike Design for Liberty, “which is slim,” The Classical Liberal Constitution “will be fat,” he said, with a likely publication date in late 2012 or early 2013.

“It’s been a book that’s been in the making for many years now,” Epstein explained. “It’s an effort to give a comprehensive way in which, if you take the positions that I do, various cases and various issues have to come out.”

Given Epstein’s past work, The Classical Liberal Constitution will have “some stuff on takings, but that’s not the main focus of it. It has things on freedom of religion and executive power and foreign affairs and so forth.”

Epstein concedes that his “knowledge base is not uniform across all these areas" but notes that "what makes it possible to do this project is that the Supreme Court doctrine generally tends to be comprised in a relatively few key cases.”

Consequently, “if you have a strong theory, and you pick the right cases to read, you can write the kind of book that I’m talking about.”


Publisher's note: This article was originally published on Examiner.com on February 23, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives - Author Earl Dudley: from child prisoner of the Japanese to UVA law professor

Author Earl Dudley: from child prisoner of the Japanese to UVA law professor
November 21, 2010 3:51 PM MST

Having had a childhood that virtually parallels the story of Steven Spielberg’s 1987 movie, Empire of the Sun, retired UVA law professor Earl C. Dudley, Jr., begins his memoir, An Interested Life, with the Japanese bombing of the Philippines that followed the attack on Pearl Harbor.

“My mother and I were injured in the first Japanese bombing of the Philippine Islands on December 8, 1941,” he told the Charlottesville Libertarian Examiner in an interview. “With my parents, I was interned in the Japanese internment camps for a little over three years in the Philippines, and we were rescued by a very dramatic operation of the 11th Airborne Division on February 23, 1945.”

Dudley was one of more than 30 local and regional writers at a “Meet the Author” book signing at the Holiday Inn in Charlottesville on November 19.


‘My parents were starving themselves’

“I was only 4 when the war was over,” Dudley explained, “so I have little independent memory of my own, but I have no memory of having had an unhappy childhood. My life was sheltered. My parents were starving themselves to feed me.”

He recalled that his father, “who was about 6 feet tall and normally weighed about 175 or 180 pounds, weighed about 120 pounds when the war was over. It was an experience for the adults that involved a tremendous amount of deprivation and unpleasantness.”

Yet, he remembers that, “as a child, I had the full attention of my parents. They were prisoners and so they focused their attention on me and they starved themselves to feed me. So I don’t think I had an unhappy childhood.”

After spending one’s earliest years in a prisoner of war camp, anything after that must pale in comparison. Yet Dudley’s life was peppered with poignant moments.

John F. Kennedy Assassination

In the early 1960s, he was working as a journalist for UPI in New York. As it happens, he was on the editor's desk when President Kennedy was assassinated on November 22, 1963.

He writes in his memoir about that day:

“The news of the assassination hit me, as it did almost everyone, like a punch to the solar plexus. But I had no time to grieve. I was running an international news wire with the biggest story in many years. Given the magnitude and pace of events, there was no time for a transition to a new editor, so I remained in the [editor’s] slot for most of the next shift as well…. I simply operated on instinct and somehow made it through the crisis without panicking.”

End of segregation

Earl Dudley

Dudley grew up in the South during the last years of enforced segregation. He was in the ninth grade in Northern Virginia, when the U.S. Supreme Court ruled that “separate but equal” schools were inherently unequal and, consequently, unconstitutional in the case of Brown v. Board of Education.

“I was the only kid that I ever found at my Herndon High School in 1954 whose parents told him the Supreme Court got it right,” he said.

Working for civil rights, he continued, “was always a priority of mine. I organized a demonstration at the White House in the spring of 1960 in support of the sit-ins in Greensboro, North Carolina, and then in later years, I did a fair amount of pro bono work for the Lawyers Committee for Civil Rights in Washington.”

Studying at the University of Virginia Law School drew Dudley to Charlottesville and, after graduating, he clerked for Chief Justice Earl Warren during the Supreme Court’s 1967-68 term.

Police pat-downs

Dudley clerked during the year the Court decided Terry v. Ohio, a case that may have relevance in the current controversy about Transportation Security Administration searches at U.S. airports.

Dudley said that case was probably the best-known of that Supreme Court term, adding that he worked on it, explaining that it “dealt with the question of police pat-downs on the street, with less than probable cause to arrest. It was very controversial case at the time and has spawned a huge, whole jurisprudence of its own.”

After two decades working for various Washington law firms, Dudley returned to Charlottesville to teach.

His classes included “mostly litigation-related courses, because that’s what I had done in practice. I taught evidence, civil procedure, criminal procedure, criminal law, constitutional law, and trial advocacy.”

Dudley retired from teaching in 2008, and now enjoys quietude and travel with his wife of more than 50 years, Louise, and his family, seven decades after a tumultuous beginning to what he calls “an interested life.”

From the Archives: Porn king Larry Flynt defends free speech in Charlottesville

Porn king Larry Flynt defends free speech in Charlottesville
November 6, 2011 9:24 PM MST

Self-described smut peddler and free speech advocate Larry Flynt appeared at the Virginia Film Festival in Charlottesville on November 4 to discuss the 1996 Milos Forman-directed film based on his life, The People vs. Larry Flynt. The screening was sponsored by the Thomas Jefferson Center for the Protection of Free Expression.

Flynt had earlier spoken at the University of Virginia in November 2000 with his friend and courtroom adversary, the late Jerry Falwell, as part of a lecture tour in which they talked about the landmark U.S. Supreme Court decision, Hustler Magazine v. Falwell (1988), in which a unanimous court upheld Hustler’s right to engage in political parody even if the object of that parody (Falwell) had hurt feelings as a result.

That case originated after Hustler, one of many adult publications operated by Flynt, had run a satirical advertisement for Campari in which Falwell allegedly endorsed the liqueur and revealed that his first sexual experience was in an outhouse with his mother. Falwell sued for libel and lost, but won damages in a Roanoke federal court for “intentionally inflicted emotional distress.”

‘One Nation Under Sex’
After the film and discussion, Flynt autographed copies of his new book, One Nation Under Sex, for about 100 fans. The book, coauthored by David Eisenbach, looks at American history through the prism of the sex lives of presidents and first ladies.

As the crowd dispersed, Flynt answered questions posed by reporters from radio station WINA and the Charlottesville Libertarian Examiner.

Noting that many people yearn for a simpler time when their own moral values seemed to be shared by the rest of society, Flynt said that “nostalgia affects people usually in a very positive way but the world goes on.”

What needs to be understood, he said, is that “the big thing is, you’ve got to accept the rights of other people. We pay a huge price in this country to live in a free society and we’ve got to tolerate things that we don’t necessarily like so we can be free.”

Reconciling religion with freedom
Flynt added that “unfortunately, my friend Jerry Falwell never seemed to be able to reconcile the Bible with people who wanted more individual freedom.”

Larry Flynt

Supporting the idea of moral values is fine, he said, “if they work for you or your family, but if they don’t, you should not seek to impose your values on other people.”

While Jerry Falwell is dead, his son continues to run Liberty University in Lynchburg, but Flynt is not impressed with that institution’s legacy or mission.

“I know that whole family,” he said. “I’m not looking to pick a fight with them [but] they bring people like Michele Bachmann to the college and the whole nation knows about it.”

Flynt chuckled and then trailed off as he shook his head ruefully: “If they’re holding Michele Bachmann up as an example of greatness, she makes people who find Sarah Palin challenging…”

Flynt’s dismissive tone indicated he does not hold either Bachmann or Palin in high regard.


Publisher's note: This article was originally published on Examiner.com on November 6, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: NRO’s Jonah Goldberg finds witch hunts and inquisitions ‘fascinating’

NRO’s Jonah Goldberg finds witch hunts and inquisitions ‘fascinating’
August 2, 2012 3:40 PM MST

In writing his new book about progressive ideology, National Review Online contributor Jonah Goldberg discovered some surprising facts about the inquisitions of the Middle Ages.

While conducting research for The Tyranny of Clichés: How Liberals Cheat in the War of Ideas, Goldberg “became really fascinated with the history of the inquisitions and the witch hunts in medieval Europe.”

His book, a follow-up to the 2008 best-seller Liberal Fascism, includes a lengthy, four-part chapter on the Catholic Church, a result of what he uncovered.

Until he began looking into the topic more deeply, Goldberg said, he had “had no idea how incredibly screwed up our popular understanding of what the witch hunts were about and what the inquisitions were about.”

Misunderstanding witch hunts
Goldberg spoke to the Charlottesville Libertarian Examiner about his research during a break at the RightOnline conference in Las Vegas in June.

He noted that recognizing our misunderstanding of the nature of witch hunts is “not to say the witch hunts were good or the inquisitions were good, but they were far less the tragedies and travesties that the Left or the popular culture makes them out to be."

Moreover, he added, "the role the Catholic Church in these things was far different than what I had realized.”

Church as check

Jonah Goldberg

What Goldberg learned is that “the Catholic Church was a check on [the worst of] these things. The real problems were with the people themselves -- the masses, They were constantly wanting to lynch people for being witches.”

At the same time, taking advantage of the peasants’ illiteracy “local, secular aristocrats and lords were constantly pandering to the mob and the Church would come in and say, ‘Calm down everybody, let’s figure out if this person is really a witch or not.’ and often, very often, would say, ‘You guys are nuts, leave this poor woman alone.’”

Pointing to an image from popular culture, Goldberg explained that “the role of the Catholic Church we get from Monty Python, ‘Nobody expects the Spanish Inquisition’, is a much more complicated story. I found that fascinating and that’s why I have such a huge chapter on the Catholic Church” in The Tyranny of Cliches.

An audio version of the complete interview with Jonah Goldberg is available on Bearing Drift radio, "The Score."

Publisher's note: This article was originally published on Examiner.com on August 2, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Revisiting a libertarian classic - Charles Murray's 'In Pursuit of Happiness and Good Government'

Publisher's note: This article was originally published on Examiner.com on June 23, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Revisiting a libertarian classic - Charles Murray's 'In Pursuit of Happiness and Good Government'
June 23, 2010 9:41 PM MST

Question: If money can’t buy happiness, what can?

Answer: Read Charles Murray’s 1988 book, In Pursuit: Of Happiness and Good Government. It may not provide the definitive answers to this question, but it certainly focuses the argument.

Preceding by a few years Murray’s What It Means to Be a Libertarian, this follow-up to his successful critique of Great Society social policy, Losing Ground, demonstrates that Murray is probably the most lucid and readable writer on questions of social policy since Jane Jacobs.

Accessible Writing
Unlike so many “scholarly” texts on this and related topics, Murray makes accessible to any interested reader the issue of the role government may have in enabling individuals to pursue happiness. And since the questions he addresses are those that have badgered us since the beginning of speech -- What is the ultimate meaning of life? What is virtuous behavior? Where do we go from here? -- it seems few readers could be uninterested.

Murray points out that simply giving money (or food stamps, or housing vouchers) to poor people will not break the cycle of poverty. Nor can it make people happy. Money is just one of a number of “enabling conditions” that allow people to put-sue happiness in their own fashions. The proper role of government, Murray argues, is to build the base for these conditions and then stand out of the way.

Murray draws on the work of psychologist Abraham Maslow for his categories of “enabling conditions for the pursuit of happiness, which is to say, if all of them were met, it is difficult to see how a person could claim that he was prevented by external conditions from pursuing happiness.” These conditions are: material resources or physiological needs (food, water, shelter, sex), safety (predictability, order, protection from physical harm), intimacy (friendship, relations with spouse or children). self-respect or self esteem, and self-actualization or, in Murray’s terms, “enjoyment.”

Government as Obstacle
In Murray’s argument, government is more likely to stand in the way after these enabling conditions are laid down, impeding the pursuit of happiness rather than facilitating it. The basic difficulty is that we deal with social problems in a fashion that either leads to no solution or to making the problem worse.

Murray cites sociologist Peter Rossi, who has formulated the Iron Law of Evaluation and the Stainless Steel Law, which say, respectively, “The expected value of any net impact assessment of any large scale social program is zero,” and “The better designed the impact assessment of a social program, the more likely is the resulting estimate of net impact to be zero.” In other words, social planners are like dogs chasing their tails. They run and run and bark and bark, but they don’t get anywhere and they don’t catch anything.

Drawing examples from the real world -- the 55-mph speed limit and the task of attracting good teachers to public schools, for instance -- Murray demonstrates that conventional ways of thinking are wholly inadequate for the issues we confront. New questions must be asked, he says, questions that do not necessarily have quantifiable answers.

Individuals Alone
Much of what comprises “happiness” and the “pursuit of happiness” cannot be expressed in terms of dollars, gallons, or percentiles. The metaphor for their work used by social planners should be changed from engineering to healing. As a result, Murray says, “the world would not be perfect; it would just be better.”

The essence of Murray’s message is that individuals alone can best determine their own destinies and can best decide how they shall pursue happiness.

From the Archives: Author Brian Doherty explains Ron Paul’s ambivalence on gay issues

Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on May 18, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Author Brian Doherty explains Ron Paul’s ambivalence on gay issues
May 18, 2012 10:13 PM MST

Republican presidential candidate Ron Paul has a record on gay-rights issues that can best be described as mixed.

For instance, Dr. Paul was one of only four Republicans in the House of Representatives to vote in favor of repealing the ban on openly gay personnel in the armed forces known as “Don’t Ask Don’t Tell.”

Paul also opposes a federal constitutional amendment that would prohibit same-sex marriage across the United States, yet he is the sponsor of legislation that would remove from federal courts the jurisdiction to hear and rule upon challenges to laws that ban gay marriage.


‘Voluntary and consensual agreements’
In his 2011 book, Liberty Defined, Paul suggests there should be a separation of marriage and state, just like there is separation of church and state.

In his chapter on marriage, he argues that “[if] the government was not involved, there would be no discussion or controversy over the definition of marriage. Why should the government give permission to two individuals for them to call themselves married? In a free society, something that we do not truly enjoy, all voluntary and consensual agreements would be recognized. If disputes arose, the courts could be involved as in any other civil dispute.”

This reference to the courts as protectors of contracts seems to be at odds with the bill he introduced to take marriage laws out of the jurisdiction of the federal courts.


‘One man and one woman’

While Paul seems to be tepidly endorsing the idea that same-sex couples could wed, he has said on several occasions that he thinks marriage should be limited to one man and one woman.

While campaigning in Iowa earlier this year, he said that he believes “that marriage is between one man and one woman and must be protected. I supported the Defense of Marriage Act, which used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause to ensure that no state would be forced to recognize a same sex marriage license issued in another state.”

Journalist Brian Doherty has covered Ron Paul since 1999. He is the author of a new book, Ron Paul's rEVOLution: The Man and the Movement He Inspired. After a panel discussion about his book this week at the Cato Institute, the Charlottesville Libertarian Examiner asked Doherty about what appears to be Ron Paul’s “uncharacteristically studied ambivalence” about gay rights issues, particularly with regard to marriage equality.

Something ‘weird’
Paying a compliment to his interviewer, Doherty replied that “It is likely that you know every twist and turn of his thoughts on this issue better than me,” but he did go on to offer a partial explanation for Paul’s positions.

“I remember where he’s come to at this point, where I think he reliably will give the ‘get government out of marriage entirely’ answer, but I know his history with things like DOMA is more complicated than that. I’ve honestly forgotten every twist and turn of it.”

At bottom, Doherty explained, Paul’s inconsistent positions on gay rights issues can be explained by the fact that “he’s a 77-year-old American man who’s lived in Texas. There probably is a personally rooted, religiously rooted sense” – and here Doherty spoke sotto voce – “that there’s something a little ‘weird’ about homosexuality that maybe he’s not entirely comfortable with.”

‘Bruno-esque’
At the same time, Doherty noted, “I’m pretty sure both from watching him and knowing some of his associates, that that doesn’t come out in person, except possibly in a Bruno-esque situation” -- referring to a bizarre episode in the 2009 film Bruno in which actor Sacha Baron Cohen makes a pass at Ron Paul in a dimly-lit hotel room – “which I think is understandable.”

But, Doherty added, “circumstances and time had to probably open his mind a little on that question and I don’t personally fault him for it too much.”

In the end, he said, the answer to the gay-rights question that Ron Paul has come to embrace “seems to me about the correct libertarian-qua-libertarian answer.”

Complete audio of this interview with Brian Doherty can be heard as a podcast through Bearing Drift.

Additional excerpts from this interview focus on a post-Ron Paul political future and the decentralized nature of the Ron Paul phenomenon.

From the Archives: Journalist Christian Caryl investigates Boston's 'lone-wolf' Tsarnaev brothers

Publisher's note: This article was originally published on Examiner.com on June 7, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

In the June 6 [2013] edition of the New York Review of Books, veteran journalist Christian Caryl has contributed an investigative piece about Tamerlan and Dzhokar Tsarnaev, the alleged Boston Marathon bombers.

The article, called “The Bombers' World,” looks into the family background, friendships, neighbors, and remote influences on the Tsarnaev brothers, who came to the United States from the former Soviet Union more than a decade ago but who still had ties to their ancestral homeland of Chechnya.

As Caryl explains the family's arrival in his article:

The Tsarnaevs arrived in the US after a brief stay in Dagestan, another Russian republic that abuts Chechnya, but they had spent most of their lives in the Central Asian country of Kyrgyzstan, where Anzor Tsarnaev, the father, had worked for a while in the local prosecutor’s office. But when a new war broke out in Chechnya in 1999, Anzor said, the Kyrgyz authorities (perhaps under pressure from the Kremlin) purged the government’s ranks of anyone with a Chechen background. Anzor lost his job, and for a time, he said, he was even thrown in jail, where his guards subjected him to beatings. It was this abuse that served as the basis for the family’s (ultimately successful) application for refugee status in the US.

The Charlottesville Libertarian Examiner interviewed Christian Caryl about his investigations into the Tsarnaev brothers and their backgrounds after he delivered a lecture about his new book, Strange Rebels: 1979 and the Birth of the 21st Century, at the Stimson Center in Washington.

'Something of an outlier'

Caryl, who is a fluent Russian speaker, explained that he had “talked to people who knew the Tsarnaevs extremely well – indeed intimately, I would say.”

He also “examined their websites [and] their use of social media in some detail.”

That led him to conclude that “we're dealing with perhaps something of an outlier” among terrorist groups and individuals.

“In many respects,” Caryl said, the Tsarnaevs' “case is so unusual and so different that we may not see exactly this same configuration in the future.”

What he found “quite striking,” he said in the interview, as well as “perhaps very threatening,” is the existence of “lone-wolf terrorists who form their convictions almost in isolation from people around them.”

'The Internet is enough'

Rather than being taught by a mentor or someone with more experience or learning, for these lone wolves “it really has so much to do with the Internet and with” what Caryl calls a “virtual community of jihadis on the Internet.”

As a consequence, he explained, “you almost don't need people around you talking about this stuff anymore. The Internet is enough.”

In the case of the April 15 Boston Marathon bombing, he said, “What's fascinating really about the Tsarnaevs is the isolation in which they became what they became.”

That, he concluded, “has somewhat ominous significance for the kind of terrorism we're going to see in the future.”

A question that has been asked many times since the Boston terrorist attack is whether both Dzhokar Tsarnaev and his elder brother were both radicalized as jihadists.

Based on his research, Caryl said, “I think the younger brother is very much a story of the influence of the older brother.”

Older brother's influence

This, he explained, is “the one aspect of this story that really is very Chechen, characteristically Chechen,” – that is, “the fact that the older brother had this enormous influence within the family. That's very characteristic. In other ways, the Tsarnaevs had very little to do with Chechen culture and the whole Chechen story.”

Tamerlan's influence on Dzhokar “sticks out” as characteristically Chechen, Caryl continued, because “in Chechen families, it's the oldest son who has enormous authority and wields enormous influence within the family.”

In the case of the Tsarnaevs, he said, “we're dealing with a case where [Tamerlan] lorded it over his younger brother to really an extraordinary degree and ultimately [to a] fateful extent.”

Suggested Links

GOP candidate Ken Cuccinelli says no to including Libertarian nominee in debates
Former Congressman Tom Davis comments on IRS scandal with warning for GOP
GOP lieutenant governor candidate E. W. Jackson 'certainly used marijuana'
Gubernatorial candidate Terry McAuliffe hosts campaign kickoff event at PVCC
James Robinson discusses 'why nations fail' at George Mason University

From the Archives: 2012 Jefferson Muzzles bestowed for censoring speech, expression

Publisher's note: This article was originally published on Examiner.com on April 11, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

2012 Jefferson Muzzles bestowed for censoring speech, expression
April 11, 2012 10:29 PM MST

As it has done each year for the past two decades, the Charlottesville-based Thomas Jefferson Center for the Protection of Free Expression has handed out its Jefferson Muzzles to government officials and agencies who stretch their authority and stifle to speech of American citizens.

The Center is also the sponsor of the First Amendment Monument on Charlottesville’s downtown mall, which is sometimes ruefully called the “Free Speech Memorial.”

This year’s Muzzle winners – who may or may not accept their awards graciously – were listed in a news release made available just after midnight on April 12, one day before the birthday of the namesake of the Thomas Jefferson Center:

*The Florida Legislature and Florida Governor Rick Scott for passing the Firearm Owners’ Privacy Act, a law restricting what Florida physicians may say to their patients regarding guns and gun safety.

*The U.S. State Department for rescinding the invitation to a Palestinian cartoonist to participate in a conference focusing on free speech because some of his cartoons were deemed to be anti-Semitic.

*Sam Houston State University (Texas) Professor Joe Kirk and the University Police Department for their respective actions involving a temporary campus “free speech wall” on which students were invited to write whatever they wanted. Professor Kirk literally cut the “F-word” from the wall where it was utilized to criticize President Obama. The university police then threatened to arrest any students who attempted to write the offending word again.

*Mayor Wayne Garner of Carrollton, Georgia for unilaterally canceling a previously-approved community theater production of The Rocky Horror Show at a publicly-owned venue. The show was in rehearsal when a cast member posted a video clip on his personal Facebook page. When the Mayor saw the clip, he canceled the already advertised production.

*The Administration of Catawba Valley Community College in North Carolina for banning a student from campus after he criticized via Facebook the school’s partnership with Higher One Financial Services and the aggressive marketing of a CVCC branded Debit Mastercard.

*Salem, Missouri Public Library’s Board of Trustees for using filtering software on library computers that classified many non-mainstream religious websites as “occult” or “criminal,” thereby blocking access to the sites.

*Lake of the Ozarks Camdenton R-III School District in Missouri for using filtering software on school computers that blocked access to many websites advocating equality for lesbian, gay, bisexual, and transgender people while comparable anti-gay websites were not blocked.

There were also two Virginia winners, including one that received a “Lifetime Achievement Muzzle”:

*The Norfolk, Virginia, Police Department for arresting and prosecuting a man for filming an on-duty police officer sitting in his car, claiming the man had to have the officer’s permission.

*The Virginia Department of Corrections for preventing an inmate from receiving a spoken word CD of works by Dylan Thomas because of a policy that permits only approved music and faith-based spoken word CDs. This is the third consecutive Muzzle for the VDOC, having previously been censured in 2010 for restricting access to religious spoken word CDs, and in 2011 for denying prisoners’ access to “The Jailhouse Lawyer’s Handbook,” a work detailing the legal rights of prisoners.

It was the Virginia Department of Corrections that received only the third lifetime Muzzle in the history of the awards. The others have been given to former New York Mayor Rudy Giuliani, in 1999, and the Federal Communications Commission, in 2008.

Suggested Links

Thomas Jefferson Center announces 2010 Muzzle Awards
Porn king Larry Flynt defends free speech in Charlottesville
Josh Wheeler discusses ‘Hustler v. Falwell’ as bulwark for free speech
Charlottesville lawyers compile rules against ‘politically correct’ Xmas
Highlighting free-speech worries, Virginia politicians disagree on SOPA

From the Archives: Georgetown philosophy professor Jason Brennan explores ethics of voting

Publisher's note: This article was originally published on Examiner.com on July 31, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Georgetown philosophy professor Jason Brennan explores ethics of voting

“Every day you see the same message: ‘get out the vote, get out the vote, get out the vote,’” says philosophy professor Jason Brennan.

“What if all the sentiments underlying that were just wrong?” he asks. What if they “could be shown to be wrong pretty easily?”

According to Brennan, his new book, The Ethics of Voting, shows those underlying sentiments to be, in fact, wrong.

Brennan, an assistant professor of business and philosophy at Georgetown University, summarized his book at a Cato Institute forum on July 21. After his presentation, he spoke with the Charlottesville Libertarian Examiner about what motivated him to write The Ethics of Voting, how the book has been received by academics, and his new research on private behavior and the common good.

Brennan has long been interested in the topic of the ethics of voting.

Is voting special?

“Growing up,” he said, “I kept hearing, over and over again, the American civic religion [says] that voting is special, that political participation is special, that serving in the military makes you an especially good person.”

These claims were not satisfying to Brennan, he explained.

“I never found myself gripped by that,” he said. “I always wondered: What were the grounds underlying that? Why did people believe it?”

He also discovered, he continued, that “at the same time, there’s a kind of interesting philosophical question about what you should do in situations where we as a group are doing something bad but that your individual input doesn’t make a difference. That happens a lot in politics.”

Those two different but related things brought him to this topic.

Is voting rational?

He had read some of the literature about voter behavior but George Mason University economist Bryan Caplan’s 2008 book, The Myth of the Rational Voter, provided extra stimulus to write his own book.

“After reading that, I asked myself, suppose he’s right that voters are irrational. What does that mean about what they should do?”

The answer is not simple, he said. One cannot simply say, “Well, if they’re rational they shouldn’t vote, because individual votes don’t make a difference.” Instead, “it’s actually a real philosophical puzzle as to why it would even matter at all [with regard to] what an individual does and why they should vote well or not.”

Caplan’s book, Brennan said, was “like the last straw” in how it “pushed me over the edge to have to write something more about the philosophy behind” the ethics of voting.

Reaction from scholars

Brennan has received feedback from other academic philosophers, as well as from political scientists. Most of it has been positive.

Jason Brennan at Cato Institute, July 2011

The reaction he has had from philosophers, he said, “has been overwhelmingly very positive. Even if they disagree with the conclusions -- and many of them do -- what they’ve tended to like about it is that it takes on common sense. What it does is start with rather simple, plausible premises and leads to counterintuitive results. Philosophers tend to like that.”

Moreover, he added, “what a lot of philosophers have recognized, too, is that there are just a lot of unfounded assumptions about how politics works and what we should do. At the very least, I’m being a devil’s advocate in challenging” those assumptions, and that challenge makes philosophers “recognize that common sense [claims] about voting need to be justified, if they are justified” at all.

The reaction of political scientists, he said, “has largely been the same,” but faculty in political science departments who do political theory, “which is sort of philosophy but done in political science,” have a tendency “to be more skeptical because they tend to have a much more strongly emotional attachment to democracy than philosophers do.”

Private behavior as a public good

Brennan is now conducting new research on how private behavior contributes to the public good, something “that ended up being a major premise even in this book.”

He explained that “we can express civic virtue anywhere: by running a good business that helps people [and] makes them richer, by coming up with inventions, by making art, and so on.”

All these things, he said, help “promote the common good. They’re doing as much good as politics is doing, perhaps even more.”

The practical effect of this for individuals is that, “if you’re a person who is publicly spirited and you want to promote the common good, that doesn’t mean you have to get out of the market and go to the forum,” Brennan explained. “It might instead mean you should stay in the market and work there.”

Giving two prominent examples, Professor Brennan pointed out that “Thomas Edison did a lot more for us with his inventions than he ever would have done as a voter. Michelangelo did a lot more with his art than he ever would have done as a voter.”

He concluded by noting that “private civil society is really important for promoting the common good. If civic virtue is about promoting the common good, then private civil society might be the way to do it.”

Brennan wrote The Ethics of Voting while he taught at Brown University; it was published in April by Princeton University Press.

From the Archives: Charlottesville lawyers compile rules against ‘politically correct’ Xmas

Publisher's note: This article was originally published on Examiner.com on December 21, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Charlottesville lawyers compile rules against ‘politically correct’ Xmas

Presidential candidate Rick Perry recently raised some hackles – and generated dozens of parodies – when he stated on a campaign video that “You don’t need to be in the pew every Sunday to know there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.”

Perry was reflecting a meme that emerges year after year, seemingly with greater urgency in the past decade or so, that social or political forces are being applied to suppress the celebration of Christmas – not just in schools but in the wider public square, as well.



Christmas was illegal

It does not take much of a history lesson to find out that suppression of Christmas celebrations was much more common – and much more painful – in the early days of the United States than at any time in the twentieth or twenty-first centuries.

As University of Virginia historian Peter Onuf put it on the public radio program, BackStory with the American History Guys, “the Puritans' approach to Christmas was not low key -- it was no key. In fact, they actually banned it, made it illegal.”

Along the same lines, “New England’s War on Christmas” was the title of the first chapter of historian Stephen Nissebaum’s 1997 book, The Battle for Christmas.

Expanding on Onuf's point, Nissebaum informatively and dispassionately upends some widely-held misconceptions about the pedigree of the “traditional” Christmas:

“In New England, for the first two centuries of white settlement most people did not celebrate Christmas. In fact, the holiday was systematically suppressed by Puritans during the colonial period and largely ignored by their descendants. It was actually illegal to celebrate Christmas in Massachusetts between 1659 and 1681 (the fine was five shillings). Only in the middle of the nineteenth century did Christmas gain legal recognition as an official public holiday…”

‘Twelve rules of Christmas’

Still, bureaucrats being bureaucrats, there are times that it may appear that the government is trying to obstruct, if not ban outright, the celebration of Christmas and other winter holidays.

Coming to the rescue of people who find themselves in an uncomfortable situation vis-à-vis school superintendents, parks administrators, or local elected officials is the Charlottesville-based public interest law firm, the Rutherford Institute.

This month, the institute’s lawyers compiled a list of the “twelve rules of Christmas,” saying that “unfortunately, Christmas has become a time of controversy over what can or cannot be done in terms of celebrating the holiday.” The rules aim “to clear up much of the misunderstanding” that has arisen in recent years.

Here are four examples from the list:

“Public school students’ written or spoken personal expressions concerning the religious significance of Christmas (e.g., T-shirts with the slogan, ‘Jesus Is the Reason for the Season’) may not be censored by school officials absent evidence that the speech would cause a substantial disruption.”

“Public schools may not require students to sing Christmas songs whose messages conflict with the students’ own religious or nonreligious beliefs.”

“Private citizens or groups may display crèches or other Christmas symbols in public parks subject to the same reasonable time, place, and manner restrictions that would apply to other similar displays.”

“Government recognition of Christmas as a public holiday and granting government employees a paid holiday for Christmas does not violate the Establishment Clause of the First Amendment.”

In a news release explaining the twelve rules, Rutherford Institute president John Whitehead explained:

“Political correctness should never trump the Constitution. Schools, government officials and businesses have an opportunity to take the high road and not be relegated to playing the Grinch this Christmas. It’s time for some common sense.”

It goes without saying that expressing greetings such as “Merry Christmas” or “Happy Hanukkah” is perfectly acceptable both legally and socially. Few people need twelve – or any – rules to know that.

From the Archives: Colin Dueck explains libertarian influences in conservative foreign policy

Publisher's note: This article was originally published on Examiner.com on October 28, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Colin Dueck explains libertarian influences in conservative foreign policy

Colin Dueck teaches at George Mason University in Fairfax, Virginia, where he is associate professor of public and international affairs. He is also the author of a new book, Hard Line: The Republican Party and U.S. Foreign Policy Since World War II.

On October 28, on the eve of an election widely expected to bring in a new Republican majority to the House of Representatives, if not the U.S. Senate as well, Dueck addressed an audience at the Heritage Foundation about his book. In his lecture, he argued that the Republican approach to foreign policy has been remarkably consistent over the past six decades.

Dueck says in his book that “despite apparent oscillations between internationalism and isolationism, there has in fact been one overarching constant in conservative and Republican foreign policies for several decades now, namely, a hawkish and intense American nationalism.”

After his lecture, Dueck spoke briefly with the Charlottesville Libertarian Examiner about his book, about libertarian influences in conservative foreign policy making, and prospects for free trade after the election.


McKinley, Roosevelt, Taft

Dueck said he was motivated to write Hard Line as he “was reflecting on some of the changes that had taken place in U.S. and, specifically, Republican foreign policy after 9/11 -- the arguments for war in Iraq, the Bush doctrine, and so on.”

His original manuscript, he said, was 600 pages long and “started with McKinley," he said. “Then I talked to my editor,” who told him, “’This is totally out of control.’”

The first version of the book had chapters on McKinley, Teddy Roosevelt, and Henry Cabot Lodge, but, Dueck said, he “decided the story would hold together a little better with a start in World War II.”

He explained that the “main storyline is the decline of that anti-interventionist trend represented by Robert Taft. That’s the big story in the Forties and Fifties.”

Anti-interventionist and Libertarian Strains

Taft represented what Dueck calls an “anti-interventionist” strain in foreign policy, with origins in libertarian thought.

Colin Dueck

Libertarian thinking, Dueck explained, “was prominent in the sense that for Taft and, actually, for most conservatives and most Republicans, the belief was that if the U.S. intervened, for example, in World War II, that you would get an expanded national security state -- big government, in a way. So for Taft, the priority was ‘let’s avoid that at all costs.’ Therefore, that’s the argument for staying out of war.”

History, however, intervened. As Dueck put it, “Obviously, Pearl Harbor settled the issue.”

That anti-interventionist tendency, he continued, “still persisted after the war and for somebody like William F. Buckley [it was a] major theme, but what trumped it eventually in the Fifties was a concern over Communism.”

What happened was, said Dueck, “in practical terms a lot of libertarians or libertarian-leaning conservatives [and] Republicans embraced this new consensus over the course of the Fifties, which was a more hawkish, anti-communist, cold war policy.”

Dueck did note that there were “important exceptions” to this trend, such as economist Murray Rothbard, “who was strictly libertarian.”

Rothbard, he said, “stuck to this anti-interventionist position throughout the Cold War and in that way, almost ended up having more in common with the New Left, beginning in the Sixties and Seventies.”

While Rothbard and his circle represented “an interesting strain,” Dueck said, “it was clearly not, politically [or] in practical terms in Congress, a major force in the Republican Party,” either in the Sixties and Seventies or “in the later Cold War period.”

Free Trade Policy

One foreign policy issue that generally divides Republicans and Democrats is free trade.

Asked whether a new Republican majority in Congress will affect the pending trade agreements with Colombia, Panama, and South Korea, Dueck replied:

“Well, that will really be up to President Obama. There’s been no sign that he’s going to make that a priority.”

If Obama wanted to make free trade a priority, Dueck noted, “he might get more support from the next Congress than from the last one.”

The reason, he said, is that “at the end of the day, new Republican Members are going to be friendlier to these trade agreements than most Democrats have been.”